Wisconsin Likely to Allow Schools and Prisons to Bar Employment of Felons

June 29, 2011

Wisconsin law generally prohibits employment discrimination based on arrest or conviction records unless the elements of the crime are substantially related to the job. The “substantial relationship” test has generally limited employers from using arrest or conviction records for many violent crimes but has been permitted for crimes involving dishonesty. A new bill currently being considered by the Wisconsin Assembly (Assembly Bill (AB) 122) would create a clear-cut rule for felony convictions and allow certain employers to fire or refuse to hire anyone with a felony conviction, regardless of how the crime relates to the employment.

Current Law
The Wisconsin Fair Employment Act (WFEA), Section 111.321 of the Wisconsin Statutes, prohibits discrimination based on arrest and conviction records.

The term “arrest record” is defined to mean “information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.” The term “conviction record” is defined as “information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.”

The WFEA prohibits an employer from taking an employment action that is motivated even in part by an arrest or conviction record. However, it isn’t discrimination on the basis of an arrest or conviction record to terminate an employee for engaging in unlawful conduct if the discharge was motivated by the underlying conduct itself, not by the fact that the employee was arrested or convicted for the conduct.

‘Substantial Relationship’ Exception
The WFEA makes an exception to its general prohibition against discrimination based on arrest and conviction records when an employer can show that the circumstances of an individual’s arrest or conviction “substantially relate to the circumstances of the particular job.” That is an affirmative defense for the employer to prove. The exception as it relates to an arrest record applies only to refusing to employ or license or suspending the individual. The exception as it relates to a criminal record applies only to refusing to employ or license or terminating the individual. Thus, while it is permissible to terminate an employee because of a conviction record if the offense is substantially related to his job, it’s never permissible to terminate an employee because of an arrest record even if the charge is substantially related to his job.

The vast majority of litigation under the arrest/conviction record exception to the WFEA relates to the circumstances that must exist for an offense to be substantially related to the job. In one case, the Wisconsin Supreme Court has stated that employers must look at whether the job provides a context within which an arrested or convicted person will commit a similar crime by being placed in an employment situation offering temptations or opportunities for criminal activity similar to those present in the crimes for which he has been previously arrested or convicted. The Labor and Industry Review Commission (the governing body that reviews appeals of WFEA decisions by administrative law judges) also looks at the statutory elements of the underlying offense.

The substantial relationship test is an objective test to be applied after the fact by the administrative law judge. It is not a subjective test of the employer’s intent at the time of its decision.

The WFEA provides specific examples of when an arrest or conviction record is “per se” substantially related. For example, if an employee is arrested for conduct he engaged in while on duty for the employer, the circumstances of the arrest are per se substantially related to the job. Similarly, the WFEA permits an employer to terminate or refuse to hire an individual on the basis of her conviction record if she “is not bondable under a standard fidelity bond or equivalent bond where such bondability is required by state or federal law, administrative regulation, or established business practice of the employer.” There are other per se exceptions for certain security-related businesses and criminal background checks of caregivers.

Employment Inquiries Into Arrest/Conviction Record
With two exceptions, the WFEA expressly prohibits an employer from making any inquiry, on an application form or otherwise, into a person’s arrest record. The only two exceptions to the rule are inquiries about charges still pending and inquiries when bondability is a requirement of the job.

By contrast, the WFEA doesn’t restrict inquiries into conviction records. However, inquiries about conviction records are subject to the Act’s general provision against making “any inquiry in connection with prospective employment, which implies or expresses . . . discrimination” on the basis of any characteristic or class protected under the WFEA, including a conviction record. Thus, when inquiring about an applicant’s conviction record, you should state that it isn’t an automatic bar to employment.

Proposed Rule for Felony Convictions
AB 122 specifies that it wouldn’t be discriminatory for an educational agency or correctional facility to terminate or refuse to employ an individual who has been convicted of a felony and hasn’t been pardoned, regardless of whether the circumstances of the felony substantially relate to the circumstances of the particular job. Under AB 122, an “educational agency” is defined as:

  • a school district;
  • a cooperative educational service agency;
  • a county education board for children with disabilities;
  • a state prison;
  • a juvenile correctional facility;
  • a secured residential care center for children and youths;
  • the Wisconsin Center for the Blind and Visually Impaired;
  • the Wisconsin Educational Services Program for the Deaf and Hard of Hearing;
  • the Mendota Mental Health Institute;
  • the Winnebago Mental Health Institute;
  • a state center for the developmentally disabled;
  • a private school;
  • a charter school;
  • an agency under contract with a school board to provide a program for children at risk;
  • a nonsectarian private school or agency under contract with the Milwaukee Public School boards to provide educational programs for children enrolled in the school district.

The bill does not limit its application to future employees. Presumably, current employees with felonies could be terminated. The full text of the bill can be seen at https://docs.legis.wisconsin.gov/2011/related/proposals/ab122.

Bottom Line
Wisconsin has one of the most employee-friendly laws prohibiting discrimination based on arrest and conviction records. There are no express protections under federal law, although a blanket prohibition on hiring employees with an arrest or conviction record might lead to a disparate impact claim under Title VII. Any employers dealing with employees who have misdemeanor and ordinance violations should seek legal counsel before making employment decisions to make sure there is a substantial relationship to the job as defined under Wisconsin law.

If AB 122 passes, schools and prisons will be able to use felony convictions as a basis for firing an employee or not hiring an applicant regardless of whether there is a substantial relationship to the job. Other employers will still need to follow the old law and not make adverse employment decisions unless there is in fact a substantial relationship between the crime and the job.

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For more information about "Wisconsin Likely to Allow Schools and Prisons to Bar Employment of Felons," contact Lori M. Lubinsky at llubinsky@axley.com or 608.283.6752 or Saul C. Glazer at sglazer@axley.com or 608.260.2473.